Legal: The Media and the Message [Special Advertising Feature]

It was announced this month that the Federal National Council will be undertaking a review of the media industry and the role of the National Media Council (NMC) in the UAE. This welcome announcement makes it an interesting time to re-assess the big issues affecting overseas content producers, to try to determine what the NMC may do to create this new environment.

One of the issues being reviewed internationally is the increased presence of ‘native advertising,’ particularly within online content. Native advertising is becoming increasingly common across multiple online platforms, is used widely in Facebook and Twitter, and pops up daily next to search results. “Other content you might be interested in” is an excellent example of native advertising at work. In function, it can be considered the next generation of ‘advertorial’ content, allowing advertisers to contact potential customers by producing content that appears to be non-branded (usually by matching the style of the hosting platform).

“The advertising identity shall be clearly determined, and it shall appear as unique and separate from other editorial or media material, and there shall be limits separating the advertisement from any other material in addition to time lapses in case of radio or television broadcasting.”

The language in this Article is clear. But it is also clear that in other jurisdictions, where similar language has been used in media regulation, there are concerns among relevant regulators that content is being delivered to consumers without adequate notice of its source, and more importantly, its purpose.

The United States, as just one example, has increased the regulation of this style of content. In December 2015, the Federal Trade Commission, which regulates advertising, established a guide detailing the standards that it will apply when determining whether native advertising is ‘deceptive’ to the general public. In brief, the FTC raised concerns about three ways in which they believed native advertising could be considered deceptive:

It appears to be news, or misrepresent its source;

It tries to make contact with potential customers by using false information or omitting important information;

It uses endorsements but does not disclose that they were paid endorsements

The NMC Regulation set out above can be broadly interpreted as covering these three situations. But some advertisers in the region continue to create content that easily becomes confused with surrounding content. Sometimes, simply labelling content as a ‘suggested post’ or even a ‘sponsored article’ may not be enough when consumers are now received dozens of such messages on a regular basis. With worldwide regulators looking closely at native advertising, coupled with the sometimes inadequate levels some advertisers use to advise consumers about the nature of their content, the NMC will very likely consider that current wording requires additional clarification in order to properly protect the UAE’s consumers.

This is a special advertising feature written by Fiona Robertson, Al Tamimi & Company.